Determination of Insolvency. Effective January 1, 2003, Section 2.3 of the Agreement is amended to read in full as follows: No portion of the Trust Fund shall be diverted to or used for any purpose other than the payment of benefits pursuant to the Plan, or for the payment of expenses of administering the Plan and the Trust, or for the payment of expenses incurred in the making and administering of Trust investments pursuant to Sections 4 and 5, until such time as the Companies’ obligations to make payments pursuant to the Plan have been fully discharged; provided, and notwithstanding anything in this Agreement to the contrary, at all times during the continuance of this Trust, the principal and income of the Trust Fund shall be subject to the claims of the general creditors of the Companies. At any time that the Trustee has actual knowledge, or has determined, that a Company is “Insolvent,” it shall deliver any undistributed principal and income to satisfy such claims as a court of competent jurisdiction may direct. The Board of Directors and the Chief Executive Officer of each Company shall have the duty to inform the Trustee of that Company’s Insolvency. If a Company or any person claiming to be a creditor of a Company alleges in writing to the Trustee that such Company has become Insolvent, and if the Trustee determines such allegation is made in good faith and upon reasonable grounds, the Trustee shall immediately suspend payments from the accounts established for participants and shall hold all assets of such accounts subject to claims of such Company’s creditors. The Trustee shall then request, within 10 days, from such Company sufficient information to determine if the Company is Insolvent. If the Company shall fail or refuse to supply sufficient information from which the Trustee may determine if the Company is Insolvent within 30 days of the Trustee’s request, the Trustee shall promptly request such information from the party which alleged that the Company is Insolvent. If, on the basis of the information so provided, the Trustee determines that the Company is not Insolvent, it shall immediately resume payments from the accounts established for participants, together with payment of any amounts held back by the Trustee while making a determination as to Insolvency. If the Trustee determines that the Company is Insolvent, or if it has not received sufficient information to make a determination as to the Company’s solvency, it shall resume such payments (and make such payment for amounts withheld pending the Trustee’s determination) only after the Trustee has determined that the Company is not Insolvent or is no longer Insolvent. Unless the Trustee has actual knowledge of a Company’s Insolvency or has received notice from the Company or a person claiming to be a creditor alleging that the Company is Insolvent, it shall have no duty to inquire whether any Company is Insolvent. The Trustee may in all events rely on such evidence concerning the Companies’ solvency as may be furnished to the Trustee which will give it a reasonable basis for making a determination concerning the Companies’ solvency, and nothing in this Agreement shall in any way diminish any right of the Plan’s participants or their beneficiaries to pursue their rights as general creditors of the Companies with respect to benefits payable to them pursuant to the Plan. A Company shall be considered “Insolvent” for the purposes of this Agreement if it is unable to pay its debts as they mature, or if it is a party as a debtor to a proceeding pending under the U.S. Bankruptcy Code or under any other applicable state or federal bankruptcy law.
Appears in 2 contracts
Samples: Trust Agreement (TCF Financial Corp), Trust Agreement (TCF Financial Corp)
Determination of Insolvency. Effective January 1, 2003, Section 2.3 of the Agreement is amended to read in full as follows: No portion of the Trust Fund shall be diverted to or used for any purpose other than the payment of benefits pursuant to the Plan, or for the payment of expenses of administering the Plan and the Trust, or for the payment of expenses incurred in the making and administering of Trust investments pursuant to Sections 4 and 5, until such time as the Companies’ obligations to make payments pursuant to the Plan have been fully discharged; provided, and notwithstanding anything in this Agreement to the contrary, If at all times during the continuance of this Trust, the principal and income of the Trust Fund shall be subject to the claims of the general creditors of the Companies. At any time that the Trustee has actual knowledge, or has determined, that a Company is “Insolvent,” it shall deliver any undistributed principal and income to satisfy such claims as a court of competent jurisdiction may direct. The Board of Directors and the Chief Executive Officer of each Company shall have the duty to inform the Trustee of that Company’s Insolvency. If a Company or any person claiming to be a creditor of a the Company or the Company alleges in writing to the Trustee that such the Company has become Insolvent, and if the Trustee determines shall independently determine whether the Company is Insolvent and, pending such allegation is made in good faith and upon reasonable groundsdetermination, the Trustee shall immediately suspend discontinue payments from the accounts established for participants and of benefits under this Agreement, shall hold all assets the Trust Fund for the benefit of such accounts subject to claims of such Company’s creditors. The Trustee shall then request, within 10 days, from such Company sufficient information to determine if the Company is Insolvent. If the Company shall fail or refuse to supply sufficient information from which the Trustee may determine if the Company is Insolvent within 30 days of the Trustee’s request, the Trustee shall promptly request such information from the party which alleged that the Company is Insolvent. If, on the basis of the information so provided, the Trustee determines that the Company is not Insolvent, it shall immediately resume payments from the accounts established for participants, together with payment of any amounts held back by the Trustee while making a determination as to Insolvency. If the Trustee determines that the Company is Insolvent, or if it has not received sufficient information to make a determination as to the Company’s solvencyBankruptcy Creditors, it and shall resume such payments (and make such payment for amounts withheld pending the Trustee’s determination) of benefits under this Agreement in accordance with Article II hereof only after the Trustee has determined that the Company is not Insolvent (or is no longer Insolvent. Unless , if the Trustee has actual knowledge initially determined the Company to be Insolvent) or upon receipt of an order of a Company’s Insolvency or has received notice from court of competent jurisdiction requiring such payments. The Chief Executive Officer of the Company or a person claiming shall be obligated to give the Trustee prompt written notice in the event that the Company becomes Insolvent with the same consequences as provided in the immediately preceding sentence. In determining whether the Company is Insolvent, the Trustee may rely conclusively upon, and shall be a creditor alleging protected in relying upon, court records showing that the Company is Insolvent, it shall have no duty to inquire whether any a current report or statement from a nationally recognized credit reporting agency showing that the Company is Insolvent. The Trustee may in all events rely on such Insolvent or any other evidence concerning the Companies’ solvency as may be furnished provided to the Trustee which will give it that provides the Trustee with a reasonable basis for making a determination concerning the Companies’ Company’s solvency. For purposes of this Agreement, knowledge and nothing information concerning the Company which is not in this Agreement shall in any way diminish any right the possession of employees of the PlanTrustee’s participants Trust Department shall not be imputed to the Trustee (except to the extent that such information can reasonably be imputed to the Trustee under normal bank procedures). The Trustee shall have no duty or their beneficiaries obligation to pursue their rights ascertain whether the Company is Insolvent unless and until it receives a writing alleging that the Company is Insolvent as general creditors described in the first or second sentence of this Section. If the Trustee determines that the Company is Insolvent as provided above or has knowledge that the Company is Insolvent, the Trustee shall discontinue payments to Participants and Beneficiaries and shall hold the Trust Fund for the benefit of the Companies Company’s Bankruptcy Creditors and disburse the Trust Fund to satisfy such claims as a court of competent jurisdiction shall direct. The Trustee shall as soon as practicable after making the determination of the Company’s Insolvency invest all of the assets of the Trust Fund, with respect to the exception of any insurance policies that may be held in force, in short-term federal government securities or in a mutual fund invested in such securities. Sonoco Products Company Provided that there are sufficient assets, if the Trustee discontinues payment of benefits payable to them pursuant to the Plan. A Company shall be considered “Insolvent” for the purposes first paragraph of this Agreement if it is unable to pay its debts as they matureSection and subsequently resumes such payments, or if it is a party as a debtor the payment to a proceeding pending Participant or Beneficiary following such discontinuance shall include an aggregate amount equal to the difference between the payments which would have been made to such Participant or Beneficiary under this Agreement but for this Section and the U.S. Bankruptcy Code aggregate payments actually made to such Participant or under Beneficiary by the Company during any other applicable state or federal bankruptcy lawsuch period of discontinuance.
Appears in 1 contract
Samples: Trust Agreement (Sonoco Products Co)
Determination of Insolvency. Effective January 1, 2003, Section 2.3 of the Agreement is amended to read in full as follows: No portion of the Trust Fund shall be diverted to or used for any purpose other than the payment of benefits pursuant to the Plan, or for the payment of expenses of administering the Plan and the Trust, or for the payment of expenses incurred in the making and administering of Trust investments pursuant to Sections 4 and 5, until such time as the Companies’ obligations to make payments pursuant to the Plan have been fully discharged; provided, and notwithstanding anything in this Agreement to the contrary, If at all times during the continuance of this Trust, the principal and income of the Trust Fund shall be subject to the claims of the general creditors of the Companies. At any time that the Trustee has actual knowledge, or has determined, that a Company is “Insolvent,” it shall deliver any undistributed principal and income to satisfy such claims as a court of competent jurisdiction may direct. The Board of Directors and the Chief Executive Officer of each Company shall have the duty to inform the Trustee of that Company’s Insolvency. If a Company or any person claiming to be a creditor of a the Company or the Company alleges in writing to the Trustee that such the Company has become Insolvent, and if the Trustee determines shall independently determine whether the Company is Insolvent and, pending such allegation is made in good faith and upon reasonable groundsdetermination, the Trustee shall immediately suspend discontinue payments from the accounts established for participants and of benefits under this Agreement, shall hold all assets the Trust Fund for the benefit of such accounts subject to claims of such Company’s creditors. The Trustee shall then request, within 10 days, from such Company sufficient information to determine if the Company is Insolvent. If the Company shall fail or refuse to supply sufficient information from which the Trustee may determine if the Company is Insolvent within 30 days of the Trustee’s request, the Trustee shall promptly request such information from the party which alleged that the Company is Insolvent. If, on the basis of the information so provided, the Trustee determines that the Company is not Insolvent, it shall immediately resume payments from the accounts established for participants, together with payment of any amounts held back by the Trustee while making a determination as to Insolvency. If the Trustee determines that the Company is Insolvent, or if it has not received sufficient information to make a determination as to the Company’s solvencyBankruptcy Creditors, it and shall resume such payments (and make such payment for amounts withheld pending the Trustee’s determination) of benefits under this Agreement in accordance with Article II hereof only after the Trustee has determined that the Company is not Insolvent (or is no longer Insolvent. Unless , if the Trustee has actual knowledge initially determined the Company to be Insolvent) or upon receipt of an order of a Company’s Insolvency or has received notice from court of competent jurisdiction requiring such payments. The Chief Executive Officer of the Company or a person claiming shall be obligated to give the Trustee prompt written notice in the event that the Company becomes Insolvent with the same consequences as provided in the immediately preceding sentence. In determining whether the Company is Insolvent, the Trustee may rely conclusively upon, and shall be a creditor alleging protected in relying upon, court records showing that the Company is Insolvent, it shall have no duty to inquire whether any a current report or statement from a nationally recognized credit reporting agency showing that the Company is Insolvent. The Trustee may in all events rely on such Insolvent or any other evidence concerning the Companies’ solvency as may be furnished provided to the Trustee which will give it that provides the Trustee with a reasonable basis for making a determination concerning the Companies’ Company’s solvency. For purposes of this Agreement, knowledge and nothing information concerning the Company which is not in this Agreement shall in any way diminish any right the possession of employees of the PlanTrustee’s participants Trust Department shall not be imputed to the Trustee (except to the extent that such information can reasonably be imputed to the Trustee under normal bank procedures). The Trustee shall have no duty or their beneficiaries obligation to pursue their rights ascertain whether the Company is Insolvent unless and until it receives a writing alleging that the Company is Insolvent as general creditors described in the first or second sentence of this Section. If the Trustee determines that the Company is Insolvent as provided above or has knowledge that the Company is Insolvent, the Trustee shall discontinue payments to Participants and Beneficiaries and shall hold the Trust Fund for the benefit of the Companies Company’s Bankruptcy Creditors and disburse the Trust Fund to satisfy such claims as a court of competent jurisdiction shall direct. The Trustee shall as soon as practicable after making the determination of the Company’s Insolvency invest all of the assets of the Trust Fund, with respect to the exception of any insurance policies that may be held in force, in short-term federal government securities or in a mutual fund invested in such securities. Provided that there are sufficient assets, if the Trustee discontinues payment of benefits payable to them pursuant to the Plan. A Company shall be considered “Insolvent” for the purposes first paragraph of this Agreement if it is unable to pay its debts as they matureSection and subsequently resumes such payments, or if it is a party as a debtor the payment to a proceeding pending Participant or Beneficiary following such discontinuance shall include an aggregate amount equal to the difference between the payments which would have been made to such Participant or Beneficiary under this Agreement but for this Section and the U.S. Bankruptcy Code aggregate payments actually made to such Participant or under Beneficiary by the Company during any other applicable state or federal bankruptcy law.such period of discontinuance. Sonoco Products Company
Appears in 1 contract
Samples: Sonoco Products (Sonoco Products Co)
